Defendant

Prosecutor

Lee Jong-chul(s)(s)(s)(s)(public trial)(s)

Attorney Lee Im-soo (Korean National Assembly)

Incheon District Court Decision 201Ma1132 Decided August 3, 2012

Of the judgment below, the part on the fraud of August 11, 2002 shall be reversed.

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The Prosecutor's appeal on the fraud of September 11, 2002 is dismissed.

1. Summary of grounds for appeal;

Comprehensively taking account of the evidence presented by the prosecutor, the defendant borrowed KRW 15 million from the victim on September 11, 2002, as stated in the facts charged, and the defendant could fully recognize the fact that the defendant had no intent or ability to repay to the defendant at the time of borrowing money from the victim on August 11, 2002 and September 11, 2002, but the court below erred by misapprehending the fact that the court below acquitted the defendant on the facts charged of this case and adversely affected the conclusion of the judgment.

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged in this case

The defendant is a corporate cause. The defendant bears approximately KRW 30 million to KRW 40 million on August 2002, while he does not have any special property and borrows money from the victim non-indicted 3, even if he did not have any intent or ability to repay the money.

(1) On August 11, 2002, the victim’s house located in Bupyeong-gu Incheon Metropolitan City ( Address 1 omitted) states that “If the victim lends 20 million won or more, he/she will repay the principal and interest without molding the principal and interest,” and that in this context he/she obtains 20 million won or more from the victim on the job as the borrowed money, he/she obtains it from the victim;

(2) On September 11, 2002, at the same place, the victim made a false statement to the effect that “if there is only 15 million won, she may receive money by selling the goods, and if there is no money, she will give a profit if she gets a profit, and make an interest if she is unable to do so, she shall receive 15 million won from the victim on the same page as the borrowed money.” The victim received 15 million won from the victim on the same page as the borrowed money.

B. The judgment of the court below

The court below found the defendant not guilty on the ground that it is difficult to conclude that the evidence submitted by the prosecutor alone had the intent to acquire money from the victim without intent or ability to repay the borrowed money, or that the defendant borrowed 15 million won from the victim on September 11, 2002.

3. Judgment of the court below

A. Determination as to the fraud on September 11, 2002 (whether the defendant borrowed KRW 5 million on September 11, 2002)

The burden of proof for the criminal facts prosecuted in a criminal trial is that the prosecutor has the burden of proving the criminal facts, and the recognition of the criminal facts must be proved to the extent that there is no reasonable doubt (Article 307 of the Criminal Procedure Act). If such proof fails to reach the extent, even if there is suspicion of guilt against the defendant, the defendant shall be judged

(5) On September 11, 202, the Defendant stated that the Defendant borrowed KRW 15 million from the victim’s 20.44,000,000,000 from 10,000 to 15,000,000,000 won was 10,000,000,000 won and 20,000 won were 10,000,000,000 won was 10,000,000 won was 10,000,000 won was 10,000,000 won was 10,000,000 won was 10,000,000 won was 10,000 won was 10,000,000 won was 20,000 won was 10,000,000 won was 10,000 won was 20,000 won.

Therefore, it is reasonable that the court below found the defendant not guilty of this part of the facts charged, so the prosecutor's allegation of mistake is without merit.

B. Determination as to the fraud of August 11, 2002 (whether the Defendant had the intent and ability to repay at the time of borrowing as of August 11, 2002)

In light of the following circumstances: ① the Defendant began to borrow money from around 200 to around 200, and the Defendant borrowed money from the victim through credit card cash services from around 201 to about 200, and then borrowed money from the victim again on August 11, 2002. However, on around 203, the Defendant used money from the victim from around 00 to January 200, the Defendant borrowed money from around 200 to around 200 to around 200.4, the Defendant used the above money from the above Defendant’s credit card trading to around 00 to around 200, and the Defendant used the money from around 200 to around 200 to around 20, the Defendant used the above money in the form of “the so-called “the so-called “the so-called “the return of the money,” and the Defendant used the money from around 200 to around 20,000 won to around 30,000 won.

Therefore, the prosecutor's assertion that there is an error of mistake in the facts charged in this part of the judgment of the court below is justified, since this part of the fraud against the defendant is guilty.

4. Conclusion

Therefore, since the prosecutor's assertion of mistake of facts against the fraud of August 11, 2002 among the judgment below is well-grounded, the above part of the judgment below is reversed, and it is again decided as follows after pleading, and the prosecutor's appeal as to the fraud of September 11, 2002 is dismissed as it is without merit.

Around August 2002, the Defendant was liable to pay approximately KRW 20 million to KRW 40 million to KRW 40 million, while the Defendant did not have any special property and, even if he borrowed money from the victim Nonindicted 3, did not have any intent or ability to repay the money, the Defendant acquired the principal and interest from the victim’s house located in Bupyeong-gu Incheon Metropolitan City ( Address 1 omitted) from the victim’s house in Bupyeong-gu on August 11, 2002, by falsely stating that “If the Defendant borrowed KRW 20 million from the victim’s house in Bupyeong-gu, Incheon, he would pay the principal and interest without the mold.” The Defendant acquired the amount of KRW 20 million from the victim’s page as the borrowed money.

1. Part of the defendant's original judgment and the oral statement in court;

1. Part of the legal statement of Nonindicted 3’s witness of the court below

1. Partial statement of each police interrogation protocol against the accused;

1. The police statement of Nonindicted 3

1. Contracts, promissory notes;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 347(1) of the Criminal Act (Selection of Fine)

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Although the Defendant was the first offender, the Defendant did not object to denying the instant crime until the Defendant was in the trial, and the Defendant did not pay the amount of damage to the victim even after about 10 years have passed since the date of the instant crime, and the Defendant’s age, character and conduct, environment, means and consequence of the instant crime, and other circumstances that form the conditions of the instant sentencing as indicated in the record, such as the circumstances after the commission of the crime, shall be determined by taking full account of the following circumstances.

Judges Lee Jae-won (Presiding Judge)